Opinion
FSTCV166027382S
03-10-2017
James Lamb v. Karen Mitchell
UNPUBLISHED OPINION
MEMORANDUM OF DECISION re MOTION FOR STAY (#128.00)
Kenneth B. Povodator, J.
The appellant has taken an appeal from the court's denial of a motion to dismiss; an abbreviated summary of the procedural background is recited in the trial court's articulation dated March 2, 2017.
Shortly after the appeal was filed, the appellant moved for a stay pending the outcome of the appeal. When the case appeared on a short calendar, the court issued an order to the effect that it perceived no action to be necessary. The appellant did not ask for the court to entertain argument, did not ask for the court to reconsider, did not ask the court to issue a written decision (through the mechanism set forth in Practice Book § 64-1(b), but instead filed a motion for review by the Appellate Court.
Pursuant to Practice Book § 61-14, " a ruling concerning a stay is a judgment in a trial to the court for purposes of Section 64-1" such that the procedures of Practice Book § 64-1 presumptively are applicable. Despite the appellant's failure to attempt to utilize that vehicle, the court is issuing this memorandum of decision.
The court notes that the motion for stay cited NO relevant authority with respect to whether an automatic stay was in effect or whether the situation came within the scope of discretionary stays. Other than State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1993) which addresses the issue of whether an order is appealable and not the existence of a stay, both cases cited by the appellant-- Baldwin Piano & Organ Co. v. Blake, 186 Conn. 295, 297, 441 A.2d 183, 184 (1982) and Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 834, 826 A.2d 1102, 1106 (2003)--relate to the " jurisdiction first" rule, requiring a court to address and resolve jurisdictional issues before proceeding with the case; they say nothing about the existence or absence of automatic stays. In light of the extensive, detailed procedures in Chapter 61 relating to stays, an analogy to the jurisdiction first rule is of trivial significance--particularly when, as discussed below, there is at least some appellate decisional authority on the issue.
The court is compelled to observe that the appellant is taking inherently inconsistent positions--the denial of the motion to dismiss is an appealable decision under Curcio except that it is not an appealable decision under Curcio for purposes of an automatic stay. Practice Book § 61-11 creates a presumption of an automatic stay unless otherwise provided by law, and the appellant has not cited any authority for the non-existence of an automatic stay in connection with an appeal authorized by Curcio .
Independent of this case, the court recently reviewed the recent and relevant discussion in State v. J.M.F., 170 Conn.App. 120, 168-75 (2017), and the cases cited therein. The situations discussed all appear to be instances where a trial court declined to acknowledge the existence of an automatic stay, and on appellate review, the trial court's actions were determined to be correct. The problem this court foresees is the second-level jurisdictional implications, because the Appellate Court seems to have endorsed a process whereby a trial court is authorized, at least implicitly, to make Curcio -type determination of the existence of an appealable final order/judgment as a necessary predicate to determining whether in a non-obvious situation, the automatic appellate stay is in place. In effect, despite the existence of a pending motion to dismiss this appeal, the implication of State v. J.M.F. and the cases cited therein is that this court should make a preliminary determination of appellate jurisdiction--because if the appeal is proper and the Appellate Court does have jurisdiction over the appeal, then an automatic stay presumptively is in effect.
This court previously has recognized that Curcio -type determinations are issues properly within the jurisdiction of the Appellate Court, not the trial court; see, e.g., #224.00 in Cadavid v. Ranginwala, FSTCV126014019S, and again, in light of the pendency of the motion to dismiss in this case which would address the issue with an appropriate level of authority, the court did not deem it appropriate to " presume" to decide, even on a preliminary basis, the Curcio issue. Even after reading State v. J.M.F., it is not clear whether the Appellate Court is directing trial courts to make such decisions, or instead is stating that if/when a trial court makes such a decision (explicitly or implicitly) and the decision is correct based on the Appellate Court's eventual review of the underlying jurisdictional issue, the decision is not subject to criticism.
The case subsequently was before the Appellate Court as AC 37578. The appellate-level proceeding eventually was dismissed; #246.00. (Apparently perceiving there to have been no immediately-appealable decision in the trial court, the defendant had attempted to utilize the writ of error procedure.)
Thus, in State v. J.M.F., the Appellate Court stated that " the [trial court] did not act in violation of an appellate stay when it proceeded with trial in spite of the defendant's fourth interlocutory appeal from a nonappealable order, " 170 Conn.App. 175.
The foregoing explains the court's rationale for determining (initially) that no action was necessary. In light of the somewhat ambiguous implication of State v. J.M.F., and despite the effectively self-contradictory positions of the appellant--the denial of the motion to dismiss is a final decision under Curcio for purposes of the right to appeal, but the denial is not a final decision under Curcio for purposes of an automatic stay associated with such an appeal--to the extent that the court can and should make a preliminary Curcio -type decision, the court already has noted its doubts that the denial of the motion to dismiss is a final judgment; see, first full paragraph on page 4 of the court's recently-filed articulation; see, also, final paragraph of that decision (" and assuming that this articulation is not premature or unnecessary because of the lack of a final (appealable) judgment").
Therefore, to the extent that State v. J.M.F. implies that this court has authority to make a determination as to the existence of an automatic stay necessarily predicated on a preliminary determination of applicability of Curcio (if not directing that the court should make such a determination), the court concludes that there is no automatic stay and further concludes that the motion for stay should be denied. The court reaffirms its belief that the denial of a motion to dismiss under these circumstances is not an appealable final decision, and therefore there is no automatic stay nor is a stay warranted. The court finds no reason to stay the proceedings at this time; presumably, in short order, the Appellate Court will rule upon the pending motion to dismiss, conclusively determining the issue. Further, the appellant is already a party to a limited extent, as an apportionment defendant, and the only short-term events that might require participation are discovery matters, which would not impose an undue burden on counsel, particularly given the court's perception that a Curcio analysis by the Appellate Court is highly unlikely to conclude that the denial of the motion to dismiss was an appealable decision.